Almost a year after losing secondary/contributory infringement litigation against three adult billing companies and two credit card companies, Perfect 10 publisher Norman Zada awaits a court hearing in his infringement lawsuit against Google.
Zada accuses Google of storing and posting Perfect 10 images and linking to sites he claims steal his images. He filed the action last November and expects a court hearing in the matter within the next two to three weeks. Perhaps needless to say, Google filed a response saying all it did was transmit data without linking intentionally to stolen material, adding it was doing Zada and his kind a huge favor by making surfers more aware of his original work.
Zada, perhaps needless to say, too, isn't buying it and accuses Google of costing him potential sales at a time he's trying to sell the stamp-size images to British cell phone subscribers, good now for $7,000 per month.
"As in his previous lawsuits, Zada's case is less notable for its merits than for his attempt at laying bare the unintended consequences of search engines," said Forbes about Zadeh's latest litigation bid. "Type in any kinky fetish and it will likely splash image search results on Google, Microsoft's MSN, Yahoo, and Amazon.com's new A9. Google's SafeSearch and other filters intended to cull the smut can be easily turned off by the user."
"What Google has become as far as we are concerned is an entity displaying every imaginable copyrighted image for the purpose of getting a lot of traffic to enhance their advertising revenues," Zada told AVNOnline.com, however. "There's no reason to pay to join subscription websites when they can see everything for free. They are monetizing that and taking business away from the traditional media that is not misappropriating my intellectual property."
Last July, a federal judge found CCBill, iBill, and Internet Key not directly involved in any content infringement and therefore immune to charges of secondary infringement, unfair competition, and false advertising from Perfect 10. Two weeks later, a different federal judge ruled likewise on behalf of Visa and MasterCard, ruling that Zadeh and Perfect 10 failed to prove the credit companies actually induced clients to infringe any trademark or image.
Zada is appealing both rulings to the 9th U.S. Circuit Court of Appeals. He said that court was unlikely to hear those appeals until next year at the soonest.
"We didn't expect to win both those cases" at the lower court level, Zada said, putting part of the blame on an overworked federal court system jammed in a Washington deadlock between Republicans and Democrats. "We don't have enough federal judges, the judges we have are very overworked, and they're tending to get rid of cases whenever they can," he said. "It's not an environment favorable to plaintiffs bringing more work to the court."
But he expects to win those cases on appeal.
"The way the [lower court] judge ruled was, if there's some webmaster in Czechoslovakia, for example, and he has a DVD with all these stolen movies on it, he can walk into a bank and have a DVD with only stolen movies and offer them 5 percent to let him sell with MasterCard and Visa, and he can use them to sell his pirated movies, that's what the [lower court] judge basically ruled," Zadeh said. "There's no way that can be upheld on appeal."
Electronic Frontier Foundation attorney Wendy Seltzer told AVNOnline.com she doesn't believe Perfect 10 has a case against Google so much as they have a case against those who made the unauthorized image copies in the first place.
"Google is performing an automated search of things that are out there on the Web," Seltzer said. "The right recourse is to go after the person who is posting it in the first place. Hundreds of thousands of thieves use the highways to rob banks and steal from people's homes, but we don't put up checkpoints at every toll booth for you to show you're not a thief.
Seltzer said that to prove Google is an infringer means showing Google had knowledge of the infringement when it actually happened and that Google made specific material assistance to the infringement.
"I haven't heard any argument that Google is doing anything to aid these infringements specifically, or that Google is doing anything other than maintaining a big search index that happens to search the infringed stuff as well as the non-infringed stuff," she said. "As a matter of policy, it's important to establish that what [Google is] doing is fair use. If Google was forced to screen before it got into the engine, there'd be no search engine."
Zada said Perfect 10 first approached Google in 2001 to get them to stop posting the allegedly stolen thumbnail images, sending them 18 notices under the Digital Millennium Copyright Act of 1998. "On the 18th notice, they said they couldn't do anything," he said. Saying he saw Perfect 10 images again in 2004, Zada again notified Google under the DMCA.
"They are copying our pictures and making them available to the world and knowingly doing it so they can sell more ads," he said. "Google has become the world's largest distributor of adult images, unsurpassed; they've copied every major nude scene from every major Hollywood movie, from Perfect10, from Playboy, the best supermodel shots, and anybody that goes to Google can see everything for free. This affects everybody in the adult industry."
